People v. Somera CA3

Filed 6/16/14 P. v. Somera CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

THE PEOPLE, C074487

Plaintiff and Respondent, (Super. Ct. No. SF123227A)

v.

CHESTER MARK SOMERA,

Defendant and Appellant.

Following a jury trial, defendant Chester Mark Somera was convicted of possession of a controlled substance--methamphetamine--(Health & Saf. Code, § 11377, subd. (a); count 1), violation of a court order--domestic violence protective order--(Pen. Code, § 273.6; Fam. Code, §§ 6320, 6389; count 2), and vandalism (Pen. Code, § 594, subd. (a); count 3). The court sentenced defendant to the upper term of three years in county jail on count 1, and concurrent one-year sentences on counts 2 and 3. Defendant appeals the judgment. To prove violation of a court order, the prosecution must show defendant had knowledge of the order. (Pen. Code, § 273.6; CALCRIM No. 2701.) Here, the only evidence presented to establish defendant’s knowledge of the domestic violence

1

protective order was a proof of service executed by a deputy sheriff who did not testify at trial. The proof of service was admitted into evidence over defendant’s objection, and defendant contends that its admission violated the confrontation clause warranting a reversal of the judgment on count 2. (Crawford v. Washington (2004) 541 U.S. 36, 59 [158 L.Ed.2d 177, 197] (Crawford) [“testimonial statements” of witnesses not testifying at trial may be admitted only where the declarant is unavailable and the defendant has had an opportunity to cross-examine the declarant prior to trial].) We reject defendant’s contention and affirm the judgment. DISCUSSION Defendant contends the admission of the proof of service of the domestic violence protective order without live testimony by the declarant violated the confrontation clause. (U.S. Const., 6th Amend.) Defendant acknowledges that California courts have previously concluded that proofs of service may be admitted into evidence without violating the confrontation clause because they are not testimonial. (People v. Saffold (2005) 127 Cal.App.4th 979 (Saffold).) However, defendant contends we should disregard Saffold as inconsistent with evolving Supreme Court precedent regarding the confrontation clause: Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [174 L.Ed.2d 314] (Melendez-Diaz), Bullcoming v. New Mexico (2011) __ U.S. __ [180 L.Ed.2d 610] (Bullcoming), and Williams v. Illinois (2012) __ U.S. __ [183 L.Ed.2d 89] (Williams). We disagree with defendant and find the trial court did not err in admitting the proof of service into evidence. In Melendez-Diaz, the court held that admission of affidavits by laboratory analysts regarding examination of a controlled substance (conducted at the request of law enforcement) violated the confrontation clause because they are testimonial: “not only were the affidavits ‘ “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” ’ [citation] but . . . the sole purpose of the affidavits was to provide ‘prima facie evidence